Commissioners of Customs and Excise v Ferrero UK Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 01 May 1996 |
| Date | 01 May 1996 |
| Court | Queen's Bench Division |
Queen's Bench Division (Crown Office List).
Potts J.
Christopher Vajda (instructed by the Solicitor for Customs and Excise) for the Crown.
David Ewart (instructed by Taylor Joynson Garrett) for the taxpayer.
The following cases were referred to in the judgment:
Lenihan v C & E Commrs VAT[1992] BVC 73
Pittalis v Grant ELR[1989] 1 QB 605
Value added tax - Application to amend grounds of appeal - Zero-rating - Food - Test for deciding whether product was a biscuit or confectionery - Whether Customs could argue for a new test on appeal to the court - If not, whether court had jurisdiction to remit case to the VAT tribunal to consider new test at rehearing - Value Added Tax Act 1994 schedule 8 group 1 schedule 8 group 1Value Added Tax Act 1994, Sch. 8, Grp. 1, general item 1, excepted item 2 - Rules of the Supreme Court, O. 55, r. 7(5).
This was an application on a preliminary issue in an appeal by Customs against the decision of the tribunal ((LON/94/1149) No. 13,493; [1996] BVC 2462) (chairman Dr A N Brice) that products to be sold in the UK by the taxpayer were biscuits rather than confectionery.
The products were filled wafers advertised as "a little biscuit snack" or a "speciality biscuit", which the VAT tribunal decided were zero-rated as biscuits, and not standard-rated as confectionery, within the Value Added Tax Act 1994 schedule 8 group 1Value Added Tax Act 1994, Sch. 8, Grp. 1, general item 1.
The hearing before the tribunal had proceeded on the basis that the test to be applied was whether the products were biscuits or "akin to biscuits". The tribunal, by a majority, the chairman disagreeing with the two lay members, allowed the appeal.
Customs applied by notice of motion served a week before the High Court hearing seeking to introduce a new point. They sought to add to their grounds of appeal an argument, not advanced before the tribunal, that to ask whether a product was "akin" to a biscuit was the wrong test, the correct test being whether the products in question had all the characteristics of biscuits. If the new argument was not allowed, Customs invited the court to remit the case to a fresh tribunal for rehearing so that it might reach a decision on the new test after full argument and any additional evidence. It was said that the court had the power to take that course under RSC, O. 55, r. 7(5).
The taxpayer contended that Customs should not be permitted to introduce a new argument which might have been put before the tribunal. Not only had the point not been taken, but the whole case had proceeded on the basis that the "akin" test, which had been applied in other cases, was appropriate. The taxpayer...
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Commissioners of Customs and Excise v Ferrero UK Ltd
...Solicitor for Customs and Excise) for the Crown. The following cases were referred to in the judgment: C & E Commrs v Ferrero UK Ltd VAT[1996] BVC 282 Ferrero UK Ltd VAT(LON/94/1149) No. 13,493, [1996] BVC 2462 Value added tax - Zero-rating - Food - Test for deciding whether product was a b......